Perry v Perry (No 2)

1. [1]

   The principal judgment in these proceedings was delivered on 17 December 2021: Perry v Perry [2021] NSWSC 1669 ("J").

2. [2]

   It remains necessary for the Court to make final orders and to deal with the costs of the proceedings. The plaintiff provided written submissions dated 15 June 2022 and the defendants responded on 15 June 2022. By leave, the defendants delivered a supplementary written submission on 30 June 2021. Senior counsel for the plaintiff responded by email to my tipstaff dated 1 July 2022, which led to the receipt of further emails from senior counsel and the junior counsel for the defendants dated 7 July 2022.

3. [3]

   It was necessary in the principal judgment to deal with a significant number of separate but, in some cases, overlapping issues that were raised by the parties' pleadings. Those issues were explained at length at J [34]-[142]. The length and complexity of the reasons in the principal judgment require that I assume for the purposes of these reasons that the reader has knowledge of the content of the full judgment. In J [502], I summarised my conclusions concerning the relief sought by the plaintiff. In J [503], I set out in summary form the principal findings that I had made on the evidence.

4. [4]

   As was the case in the principal judgment, and without meaning any disrespect, I will henceforth refer to the parties by their given names.

Orders proposed by the parties

1. [5]

   Both Tanya, the plaintiff, and the other members of her family, the defendants, provided proposed draft orders as attachments to their initial written submissions. I will set out first the orders proposed by Tanya, as follows:

2. [6]

   I have given the full address of the property that was referred to in the principal judgment as the Fernmount land because that property has now been sold. If I were to make order 2, as sought by Tanya, it would be necessary to refer to J [35]-[55] instead of the paragraphs identified in the draft orders.

3. [7]

   The draft orders proposed by the defendants were in the following terms:

Substantive orders

1. [8]

   I will deal first with the substantive orders that should be made in the proceedings.

2. [9]

   First, I will make the notation proposed by the defendants. The reason for the notation is explained at J [486]-[495]. In essence, Anne, as the administrator of the estate, claimed that the proportion of the sale proceeds of the Fernmount land that should be declared to be held by her on trust for the estate should be reduced to allow for her expenditure, in money and effort, in maintaining and improving the property. I found that the Fernmount land was an asset of the estate, but that, in any accounting of Anne's administration of the estate, she would be entitled to claim allowances for her effort and costs if she could prove them with sufficient accuracy. However, Tanya had claimed an order that Anne give an accounting of the whole of her administration of the estate since the grant of administration to her on 23 September 1975. I rejected Tanya's claim for an order for an account against Anne for discretionary reasons. That put Anne in the position that, if she sought an account in order to make a claim for allowances out of the estate, she would submit herself to the reciprocal obligation to provide an account to Tanya. The effect of the notation is that Anne has elected not to pursue her claim for allowances, but she has reserved the right to do so if any order is made against her that she provide an account of the administration.

3. [10]

   My understanding of the current position of the administration is that the only remaining asset in the estate, being the Fernmount land, has been sold. The substantive orders made in these proceedings will determine the parties' entitlement to shares in the proceeds of sale. I accept the defendants' submission that the declaration should provide for the parties' shares in the net proceeds of sale of the Fernmount land, allowing for all costs of sale, and not the proceeds of sale, as suggested by Tanya.

4. [11]

   There is an issue between the parties as to whether the whole of the net proceeds of sale of the Fernmount property should be declared to be an asset of the trust or only 16/17 of the net proceeds of sale. Tanya's proposed order is apparently based on my summary conclusion at J [502(3)], where I stated that Tanya's entitlement will be to 2/9 of the net proceeds of sale of the Fernmount land. The defendants correctly pointed out in their submissions that, in stating that summary conclusion, I had forgotten the finding at J [162] that, of the $17,000 that Anne paid Russell's brother, Ray, for one half of the Fernmount land, $2,000 came from Anne's own resources. The result is that order 1 as suggested by the defendants is consistent with the real findings in the principal judgment. The Court should therefore make a declaration that the estate is comprised of 16/17 of the net proceeds of sale of the Fernmount land, and another declaration that Tanya is entitled to 2/9 of the estate.

5. [12]

   I will set out the substantive orders that I will make at the end of these reasons.

Costs of the proceedings

1. [13]

   I will now turn to a consideration of the costs orders that should be made in these proceedings. First, I will consider the significance of the parties' success or otherwise in relation to the relief claimed and the findings made by the Court. I will then deal separately with the defendants' reliance upon what they say is a Calderbank offer.

Particular costs orders

1. [14]

   I consider that several of the costs orders that should be made are relatively straightforward. First, as was explained at J [14], on 18 October 2018, the fourth day of the hearing, Tanya sought leave to further amend her statement of claim. That led to the vacation of the balance of the seven-day fixture, as well as case management orders for the filing of a further amended statement of claim and a further amended defence. I am satisfied that it is conventional and proper in those circumstances for the Court to make an order that Tanya pay the defendant's' costs of and occasioned by the application to amend and the vacation of three days of the hearing. The costs payable should be limited to the costs wasted by the defendants because of the re-pleading of Tanya's claim, and any costs of the vacation of the hearing that could not be avoided by the defendants.

2. [15]

   The costs should be payable by Tanya on the ordinary basis, not the indemnity basis as sought by the defendants in their proposed order 5. Primarily, Tanya's decision to amend arose out of observations that I made during the hearing to the effect that the relief sought by Tanya was not comprehensive and did not appear to deal finally with all the disputes that had arisen concerning the administration of the estate. While Tanya is responsible for not having sought all the appropriate relief in the first place, her conduct did not involve the level of delinquency necessary to justify costs being ordered against her on the indemnity basis.

3. [16]

   Secondly, the fourth defendant, Louise, was only joined as a party to bind her to the outcome of the claim made by Tanya to the value of the eco-tourism development approval that Tanya and Louise had obtained in respect of the Fernmount land. Louise was a necessary party because Tanya accepted that, if her claim succeeded, Louise would be entitled to some part of the value established by Tanya. This aspect of Tanya's claim failed entirely, and, as is conceded by Tanya's proposed order 3(a), Tanya should be ordered to pay the defendants' costs in respect of that issue. I appreciate that, if the defendants' claim that Tanya should be ordered to pay some part of the costs of that issue on the indemnity basis fails, then the making of an order that Tanya pay all the defendants' costs of that issue will obviate the need for the Court to make a separate costs order in favour of Louise on that issue.

Costs of the proceedings generally save for one issue

1. [17]

   I now turn to a consideration of the significance of the outcome of the proceedings more generally. I accept the defendants' submission that the principles summarised by Ward CJ in Eq (as her Honour then was) in In the matters of Earth Civil Australia Pty Ltd, RCG CBD Pty Ltd, Bluemine Pty Ltd, Diamondwish Pty Ltd and Rackforce Pty Ltd (all in liq) (No 2) [2021] NSWSC 1161 at [83]-[86] properly state principles that should be applied in this case, as follows:

2. [18]

   I also accept the defendants' submission that it will be appropriate for the Court to make broad orders dealing with the parties' costs, if appropriate, by ordering that one party pay a stated proportion of the other parties' costs, rather than for the Court to make differential orders as to which parties should pay the costs of particular issues. As Brereton J (as his Honour then was) stated in In the matter of Commercial Indemnity Pty Ltd [2016] NSWSC 1125 at [44]:

3. [19]

   In this case, each side of the record has in its submissions sought to portray the outcome of the proceedings as being in substance a victory for that party or those parties, subject to relatively minor exceptions that the Court should overlook. For the reasons that follow, I do not accept this to be an accurate characterisation of the outcome, viewed from the perspective of either side of the record.

4. [20]

   Much of the reasoning in the principal judgment was concerned with the nature and significance of what the parties called the family deal. I set out my findings concerning the elements of the family deal at J [338]. In different ways, and with different legal significance, the family deal governed the way Anne administered the estate during the minority of her children and then after each child reached their majority, until late 2015, when Tanya began to insist upon her legal rights as a beneficiary of the intestate estate of her father. So long as the family deal was in effect, by mutual agreement of Anne and her children to its terms, the family deal was inconsistent with Anne being required to administer the estate strictly in accordance with her legal obligations as administrator under her grant of administration. Anne was not obliged to avoid benefiting from the estate, she was not obliged to apply the assets of the estate solely for the purpose of commercial gain for the benefit of the beneficiaries, and she was not obliged to prepare detailed accounts and to keep vouchers.

5. [21]

   In broad terms, the event that triggered Tanya's dissatisfaction with the family deal was a growing belief that Anne had preferred the interests of Mark and Michelle by making the Fernmount land available to support guarantees given by her to financiers who advanced loans to Mark and Michelle for the purposes of their business interests. While earlier minor levels of assistance provided by Anne to various family members, including Tanya, had apparently been accepted as being part of the family deal, Tanya came to believe that Anne had acted outside the bounds of the family deal, and had done so without Tanya's knowing consent. That led Tanya to send to Anne on 6 October 2015 the email that is set out at J [410]. In short, Tanya demanded a full breakdown of the transactions that Anne had entered into using Tanya's equity in the Fernmount land.

6. [22]

   Anne responded, as set out at J [411], by declining to provide Tanya with the information that she had requested.

7. [23]

   That led to the present solicitors for the defendants writing a letter to Tanya on 28 October 2015. The relevant terms of that letter are set out at J [413]. The letter asserted that Tanya and Louise consented to the Fernmount land being used as collateral security for certain business purposes of Mark and Michelle. It advised Tanya that the original advance had been increased from $1,250,000 to $1,579,000, and the Fernmount land was used as collateral security by mortgage securing a guarantee given by Anne limited to $1,310,000. The letter gave reasons why the guarantee given by Anne was not at risk of being called on by the financiers.

8. [24]

   Tanya's then solicitors wrote a response to this letter on 9 November 2015. Relevant terms of the response are set out at J [416]. The letter concluded, as follows:

9. [25]

   Tanya commenced these proceedings by statement of claim filed on 10 November 2016. Tanya did not by the relief claimed seek only to vindicate the rights that were the subject of the solicitor’s 9 November 2015 letter. Tanya sought a suite of orders against Anne to oblige her to account in accordance with her obligations as administrator if Anne had been required to administer the estate on an arm’s length basis as if it were a trust for the benefit of unrelated beneficiaries. Tanya also sought orders designed to achieve full recovery by Tanya of her alleged contributions to the estate, including but not limited to the eco-tourism joint-venture. The Court does not know how this mission creep occurred, but it ignored (a) the fact that Anne had applied the assets of the estate for the benefit of herself and her children during their minority; (b) that the facts necessary to support Tanya’s claim over the previous 40 years were beyond possible proof because of the passage of time; (c) the claims were all probably statute barred or at risk of rejection on the grounds of laches or acquiescence; and (d) most of Tanya’s claims were plainly inconsistent with the existence of the family deal.

10. [26]

    As I noted at J [51], Tanya sought orders that Anne account to Tanya on a wilful default basis, and that Anne, Mark and Michelle indemnify Tanya in respect of the consequences of the mortgages that Anne granted over the Fernmount land. I noted at J [52] that during the hearing, Mark and Michelle reordered their financial affairs so that all mortgages on the Fernmount land granted for their benefit were discharged. Consequently, while the existence of the mortgages may have prejudiced Tanya, had the lenders exercised their security rights, that did not in fact happen and could not now happen.

11. [27]

    In essence, I found that, while Tanya had been informed of the initial proposal for Anne to give a guarantee of the original loan borrowed by Mark and Michelle, as time went by, the amount for which Anne was at risk under the guarantee was increased from time to time without the knowing consent of Tanya. I found at J [442] that Tanya was entitled to make the demand in her solicitors' 9 November 2015 letter that Mark and Michelle provide a proposal on how they intended to reduce the amount secured by the mortgage over the Fernmount land with a view to ultimately discharging the mortgage.

12. [28]

    Tanya also sought an order that the grant of letters of administration to Anne be revoked, and that letters of administration be granted to Tanya or alternatively to a person nominated by her in her pleading. Tanya sought an order that the Fernmount land be sold. During the hearing, Anne voluntarily decided to sell the Fernmount land. As it I explained at J [496]-[499], the consequence of these actions on Anne's part was that it was no longer necessary for the Court to decide whether the assets of the estate should be realised, and it was not necessary for the Court to subject the estate to the costs that would be incurred by the appointment of a new administrator. As the assets of the estate would be turned into money in an account, the Court could leave Anne as the administrator and supervise the administration by the making of appropriate orders, so that the administration was conducted within the Court.

13. [29]

    It may be that if Anne had not agreed to sell the Fernmount land, her involvement in guaranteeing the loans borrowed by Mark and Michelle and granting the mortgages to secure the guarantees would, in all of the circumstances, have justified the Court in making an order revoking the grant of letters of administration to Anne and replacing her as administrator. In the events that happened, it was not necessary for the Court to receive submissions on that issue, or to decide it.

14. [30]

    As I have explained above, Anne initially claimed that the assets in the estate, and accordingly Tanya's 2/9 share in the estate, should be reduced to allow for increases in the value of the assets in the estate because of Anne's effort and expenditure of costs. Anne failed in that aspect of her claim, in the sense that, for practical reasons, she has elected to abandon her right to have an account conducted in which she could claim allowances against the estate.

15. [31]

    For all of these reasons, it can thus be seen that Tanya achieved a substantial measure of practical success in the proceedings, and that the costs of the proceedings would have been significantly reduced if the defendants, other than Louise, had recognised in late 2015 that they had stepped outside the family deal, and agreed to arrange for the cancellation of the guarantees given by Anne and the discharge of the mortgages on the Fernmount land, and also agreed to the sale of the Fernmount land and the final administration of the estate.

16. [32]

    However, on the other hand, Anne also enjoyed a substantial measure of practical success in resisting the relief sought by Tanya. In short, all of Tanya's claims for an accounting by Anne failed, including in respect of the proceeds of sale of the Pony Paddocks. That represented a significant level of success by Anne, given the burden of what would have been required by her in the conduct of an accounting in respect of the affairs of the estate from 23 September 1975. Although Tanya succeeded in demonstrating that much of Anne's conduct of the administration of the estate was not in accordance with her strict legal obligations, the currency of the family deal, the fact that Anne had used the assets in the estate to support herself and her children during their minority, and the consequences of the delay in the making of the claim by Tanya, all led the Court to the almost unavoidable conclusion that it should exercise its discretion against granting the relief sought by Tanya.

17. [33]

    Notwithstanding the lapse of time since the hearings took place, I have been able to ascertain the following broadly material matters concerning the course of the hearing:

18. [34]

    The two greatest changes to the position adopted by the defendants in the proceedings were Anne’s decision to sell the Fernmount land and Mark’s and Michelle’s decision to refinance their borrowings to remove the guarantee given by Anne and the final mortgage over the Fernmount land. The former had the practical effect that it ceased to be necessary for the Court to determine whether Anne should be replaced as administrator because of maladministration, and it became possible for the Court to supervise the completion of the administration by giving appropriate orders. The latter had the effect of removing the risk to Tanya’s share in the estate that existed so long as Anne’s guarantee could be enforced, and the powers granted by the mortgage exercised.

19. [35]

    As accurately as I can tell from an examination of the transcript, I was informed at a directions hearing on 20 March 2019, in the interval between the two hearings, that it was likely that the Fernmount land would be sold (T 20/03/19 1.33). On the first day of the second hearing, I was advised by counsel for the defendants that the Fernmount land had been on the market since 1 April 2019 (T 01/07/19 5.9). In relation to the guarantee and mortgage issue, senior counsel for Tanya still understood as of 28 March 2019 that it remained an issue whether Tanya was entitled to indemnification from Anne, Mark and Michelle in respect of the interests that encumbered the Fernmount land (T 28/03/19 3.40). When senior counsel referred to the issue in opening on the first day of the second stage of the hearing, counsel for the defendants informed the Court that Mark and Michelle had accepted an offer from their financier to refinance their loan facility in a way that would remove the guarantee and the mortgage over the Fernmount land (T 01/07/19 8.17). Counsel informed the Court that this transaction was unlikely to be completed before the end of the second stage of the hearing.

20. [36]

    The position therefore is that even though the defendants other than Louise responded to Tanya’s claim by removing the need to determine the suitability of Anne as administrator, the need for the Court to decide whether the Fernmount land should be sold, and the need for the Court to decide the consequences of the guarantee and mortgage having been given by Anne, that did not happen until shortly before the second stage of the hearing in one case and on the first day of the second stage in the other case. As a practical matter, that had the effect that the parties were not entirely spared the need to deal with those issues at the second stage of the hearing. Although the course taken by the defendants simplified the second stage of the hearing, it occurred so late that it would be unreasonable to expect Tanya to have resolved those issues without the need for a hearing. In any event, it remained reasonable for Tanya to seek to prove that Anne, Mark and Michelle had acted outside the family deal, as that remained an important issue concerning the orders that should be made for payment of the costs of the proceedings.

21. [37]

    There was an issue between the parties as to whether the defendants had maintained until the end of the proceedings that Tanya’s right to a 2/9th share in the estate had been lost because of a combination of the effect of the elapse of limitation periods, laches in her attempt to enforce her rights, and the consequences of Anne being entitled to allowances out of the estate for the improvements to its value that were caused by Anne’s effort and capital contributions. I have not been able to fully reconstruct the circumstances relevant to this dispute. The defendants are correct in their submission that they have always admitted in their defence the allegation in par 1 of the various iterations of Tanya’s statement of claim that she was “a beneficiary entitled to 2/9th of the estate”. Looking at the further amended defence, it is at least true that the defendants claimed that Tanya’s interest in the Fernmount land was limited to a share of its unimproved capital value (par 20E). The defendants also pleaded that, if Tanya’s contributions to the estate were to be taken into account, so should the much larger contributions made by the defendants (par 57). It appears that the defendants resisted Tanya being entitled to a 2/9th share in the improved capital value of the Fernmount land until the end of the proceedings. However, this issue is not of decisive significance to the conclusion that I have reached concerning the appropriate costs orders to be made.

22. [38]

    I have decided that, save for Tanya's separate claim for an increase in her share in the estate based upon the alleged increase in its value because of the eco-tourism development approval, the just and fair outcome is that Tanya, Anne, Mark and Michelle should be left to bear their own costs of the proceedings. I have come to that conclusion because of my view that a substantial part of the evidence was either directly relevant or relevant as background to more than one issue, and the parties achieved differential degrees of success in relation to those issues. It is not possible, even adopting a broad-brush approach, to discern sufficiently clear boundaries between the forensic effort of the parties in respect of issues on which in practical terms they wholly or partly succeeded or failed for the Court to be able to order that one side of the record pay part of the other side’s costs on a basis that is fair and rational. The degree of complexity in the reasoning in the principal judgment in respect of each of the separate issues does not necessarily reflect the parties' costs of contesting those issues.

Costs of the eco-tourism development approval issue

1. [39]

   I consider the costs relevant to Tanya's claim concerning the value of the eco-tourism development approval should be treated differently to the other costs of the proceedings. It was a distinct claim that depended upon Tanya being able to demonstrate that her and Louise's efforts in obtaining the development approval increased the value of the Fernmount land by some ascertainable amount. As noted at J [458]-[466], Mr King, the expert valuation witness called by Tanya, opined that the attachment of the development approval to the Fernmount land added $350,000 to his assessed value without the development approval. That was on the basis that he accepted, as an assumption, the costs incurred by Tanya of $214,178.10, which he rounded up to $250,000. He then added an additional $100,000 to allow for the scarcity value of the development approval being attached to the Fernmount land because of a subsequent change in the zoning rules. There was no satisfactory evidence that this approach was in accordance with accepted valuation principles. There was no reason for the Court to accept, given Tanya's personal work experience, that the costs that she incurred, based upon her own hourly billing rates, would be accepted in the market as the true costs of obtaining the development approval. The expert valuation witnesses ultimately accepted that the only valid way to determine whether the existence of the development approval added value to the Fernmount land was to monitor the result of the land being put to the market. As I concluded at J [485], the evidence of what happened during the sale process did not establish that the existence of the development approval added to the market value of the Fernmount land at the date of its sale.

2. [40]

   This aspect of Tanya's case was separate from the relief that she sought generally to ensure the proper administration of the estate. Costs should follow the event on this aspect of the case, and Tanya should be ordered to pay the defendants' costs of defending this claim.

Significance of Calderbank offer relied upon by defendants

1. [41]

   The final issue that requires consideration is the defendants' reliance upon a Calderbank offer dated 7 February 2019 made in a letter from their solicitors to the solicitors for Tanya.

2. [42]

   The making of this offer may have been a response to an offer made by Tanya in open court at the conclusion of the first hearing on 18 October 2018 (T 125.11-34) in the following terms:

3. [43]

   This offer by Tanya implicitly accepted that the only issue that she would continue to prosecute was her claim for her share in the alleged increase in the value of the Fernmount land that flowed from the attachment of the eco-tourism development approval. However, it is also implicit in the requirement that the defendants pay Tanya’s costs on the indemnity basis that Tanya required the defendants to accept that Tanya’s claim was valid and that it was delinquent of the defendants to resist it. It is apparent that the defendants did not accept Tanya’s open offer.

4. [44]

   The defendants' counter-offer was in two parts. The first option was that Tanya could purchase the interests of Anne, Mark and Louise in the Fernmount land for the price of $1 million. The second option was more complicated, and is summarised as follows:

5. [45]

   The most material difference between the two offers is that Tanya's acceptance of the defendants' alternative offer would have had the effect that the parties would have to bear their own costs of the proceedings, rather than that the defendants would be required to pay Tanya's costs on the indemnity basis.

6. [46]

   The Court was provided with a copy of Tanya’s solicitors’ 19 March 2019 counter-offer to the defendants’ offer. That letter contained reasons why the defendants should agree to pay Tanya’s costs of the proceedings on the indemnity basis.

7. [47]

   The question is whether the defendants have achieved a result in these proceedings that was more favourable to them than the offer contained in the February 2019 Calderbank offer (Singleton v Macquarie Broadcasting Holdings Ltd (1991) 24 NSWLR 103 at 108), and if so, whether the offer was a real compromise (Herning v GWS Machinery Pty Ltd (No 2) [2005] NSWCA 375) and whether it was unreasonable for Tanya to have rejected that offer in the circumstances (Miwa Pty Ltd v Siantan Properties Pte Ltd (No 2) [2011] NSWCA 344).

8. [48]

   The Fernmount land was sold for a price of $1,750,000 under a contract exchanged on 6 April 2021 and completed on 18 May 2021: J [474(11)]. The sale therefore took place over two years after the date of the Calderbank offer.

9. [49]

   The effect of Tanya having rejected the offer was that she and Louise did not share the $375,000 difference between the sale price and the agreed price in the offer of $1,375,000 in the proportions 60% to 40%. If one ignores the possible significance of the passage of time, the defendants achieved a result that was better than if Tanya had accepted the offer because they became entitled to their respective shares in the $375,000. They also achieved a better result because they will be entitled to the costs of the issue concerning the alleged value of the eco-tourism development approval. I accept that the Calderbank offer involved a substantial element of compromise in that it gave Tanya the opportunity of realising a share in the value of the Fernmount land if it sold for a price greater than $1,375,000, which would give Tanya a mechanism for achieving some success on the development approval issue.

10. [50]

    I am not satisfied, however, that it was unreasonable for Tanya to decline to accept the offer. The offer did not include any proposal for Mark and Michelle to procure a release of the guarantee given by Anne and the discharge of the mortgage that encumbered the Fernmount land. Tanya’s 19 March 2019 reply clearly conveyed Tanya’s continuing concern about the risk to her share in the estate that arose out of the existence of those interests. Although it was implicit in the offer that Tanya would receive her 2/9th share of the net sale price up to $1,375,000 that both the guarantee and the mortgage would be discharged before completion of the contract of sale, the continuing existence of those interests placed Tanya’s share in the estate in jeopardy. It is immaterial whether or not that risk was insignificant or substantial. Tanya was entitled to require that the risk be removed. The defendants’ offer required Tanya to bear the risk for a considerable period as it was contemplated that the sale process could take more than 12 months to complete.

11. [51]

    I am satisfied that Tanya should only be required to pay the costs of the eco-tourism development approval issue on the ordinary basis.

12. [52]

    Order 4 as proposed by Tanya will only, in the circumstances, apply to her entitlement to a share of the net proceeds of sale of the Fernmount land. Tanya has not suggested that it will impose financial hardship on her if her share is not paid to her until the amount of her costs obligation to the defendants is determined, so that the costs can be paid in whole or in part out of Tanya’s share in the net proceeds of sale that is presently held on trust.

13. [53]

    As Louise only had an interest in being party to Tanya’s claim in respect of the alleged value created by the eco-tourism development approval, I assume that her costs are covered by the order that will be made against Tanya in respect of that issue.

14. [54]

    I will give the parties liberty to relist the proceedings before me if it becomes necessary for the parties to ask for further orders or directions in relation to the assessment of the costs that Tanya will be ordered to pay. I appreciate that issues may arise in relation to the delineation of the costs of the eco-tourism development approval issue.

Orders

1. [55]

   The Court:

   1. (1)

      Notes that the first defendant elects not to seek an account in relation to the estate of the late Russell Perry, and that this election relates only to the act of seeking an account, and does not relate to participation in any account that occurs by reason of the actions of others.

   2. (2)

      Declares that the estate of the late Russell Perry is comprised of 16/17th of the net proceeds of sale of 383 Waterfall Way, Fernmount (the Proceeds).

   3. (3)

      Declares that the first defendant holds the Proceeds on trust for the estate of the late Russell Perry.

   4. (4)

      Declares that the plaintiff is entitled to 2/9th of the estate of the late Russell Perry.

   5. (5)

      Orders that the balance of the plaintiff’s claims are otherwise dismissed.

   6. (6)

      Orders the plaintiff to pay the defendants’ costs thrown away by reason of the vacation of the part-heard hearing on 18 October 2018 on the ordinary basis.

   7. (7)

      Orders the plaintiff to pay the defendants’ costs of the eco-tourism development approval issue on the ordinary basis.

   8. (8)

      Makes no other order for the costs of the proceedings with the intent that the plaintiff and the first, second and third defendants will bear their own costs of the balance of the proceedings not the subject of another costs order.

   9. (9)

      Orders that the obligations on the plaintiff to pay costs pursuant to orders 6 and 7 are to be a charge against the plaintiff’s entitlement under the declaration in order 4 with the intent that the plaintiff only receive the balance of her entitlement after her costs obligations have been discharged.